Main menu

Monthly Archives: October 2012

Santa Cruz Sentinel: 10/31/2012SAN JOSE — Ten years after filing a First Amendment lawsuit against Santa Cruz officials, Robert Norse finally got his day in court Wednesday, testifying that a mock Nazi salute he made during a public meeting did not cause the disruption that led to his arrest.

The longtime Santa Cruz City Council critic and advocate for the homeless told a federal jury he made the gesture during a March 2002 meeting after then-Mayor Christopher Krohn silenced a speaker and closed a public comment period early. Norse refused Krohn’s order to leave and was taken to jail for more than five hours, later released with no charges filed.

The 65-year-old Norse, who has long sought to overturn a city ban on camping in public overnight, said the council had a history of suppressing critics. By leaving the meeting, Norse said he would have made his supporters lose hope.

“If you begin to surrender your rights in those circumstances, where does it stop?” he asked.

George Kovacevich, the city’s lawyer, tried to paint Norse on cross examination as a chronic agitator, noting he had spoken 271 times at council meetings between 1999 and 2005. Norse acknowledged he often walked around during meetings, talking to other people, and once took a pie to the face during a skit designed to criticize council members.

“This is not really a case about a Nazi salute or a case about protesting,” Kovacevich told the jury of four women and four men. “It’s about who controls the meeting. This is a case that will show Mr. Norse can’t stand that he doesn’t have control.”

U.S. District Court Judge Ronald Whyte, who first dismissed the matter a decade ago, was ordered to hold a trial by a rare 11-member panel of the 9th Circuit Court of Appeal, which overturned an earlier ruling backing Whyte’s original decision. The city appealed to the U.S. Supreme Court in 2011, but the high court declined a review.

The case is consolidated with a 2004 arrest after Norse participated in a parade around the Council Chamber. After re-entering the room and whispering to someone, then-Mayor Scott Kennedy ordered him to leave after he challenged a request to take the conversation outside.

The city has spent an estimated $150,000 fighting Norse and, if it loses, faces the likelihood of paying him unspecified financial damages and covering his attorney’s fees. Norse had offered to settle if the city reforms rules governing meeting decorum and the camping ban, which bars sleeping outside, in a vehicle, or under a structure from 11 p.m. to 8:30 a.m.

Norse’s testimony revealed that his long-running battle with the city over homelessness created the tense backdrop for his appearances at meetings. Even though the 2002 council was one of the most progressive, Norse was unhappy with progress on reversing measures he views as criminalizing homelessness and panhandling.

During the 2002 meeting, after Krohn asked frequent grandstander Mike Tomassi to leave, a woman approached the podium to speak but was told to sit down. After she relented, Norse told the jury, he raised his arm to say, “You’re acting in a very authoritarian manner. You’re acting like fascists.”

Norse said he is Jewish and does not subscribe to Nazi ideals. He acknowledged he made the gesture with his left arm, not his right, as is Nazi custom.

Then-Councilman Tim Fitzmaurice, who Norse said had failed on a promise to reform the camping ban, noticed the salute, brought it to Krohn’s attention and asked that Norse be removed. Norse’s lawyers argue it was Fitzmaurice who caused the disruption by stopping the meeting.

After Krohn ordered Norse to leave, Norse sat down in defiance and was later arrested by a police officer. A court eventually dismissed he officer from the suit.

Video of the 2002 and 2004 incidents were played for jurors Wednesday. In an effort to establish damages, Norse said the arrest made him scared to attend meetings and caused him to lose sleep and work time.

Steve Hartman, a former conservative radio host, and former Community TV cameraman Mark Halfmoon testified they were at the 2002 meeting and did not believe the salute made a disruption.

Hartman, who now resides in Montana, flew in to testify for just a few moments, saying he was opposed to Norse’s politics but believed his actions were within his First Amendment rights. The city’s lawyer did not cross examine either witness.

Fitzmaurice and Krohn are slated to be questioned by Norse’s attorneys Thursday.

October 10, 2012

Banner from a rally held by the Brown Berets of Watsonvillein support of the Santa Cruz Eleven.

Photo by Becky Johnson May 4, 2012

by Becky Johnson
Oct 9 2012

Santa Cruz, Ca. — I went to court this morning. There was much confusion. At my August 20th hearing, I had thought that only Franklin “Angel” Alcantara and Cameron Larendeau were required to be at this hearing. But my lawyer called me yesterday, apologized for not being able to come to the hearing himself, and told me one of the other attorneys had agreed to appear on my behalf.

When I got to court, only Angel and Cameron’s names were on the court docket. Wonderful. Someone screwed up again, I thought. I wonder who.

They call our case “The Occupy Case” which is ironic, considering all the arguments that went back and forth to disassociate the 75 River Street Occupation of a long, empty bank building from Occupy Santa Cruz and its encampment in San Lorenzo Park. In the end, OSC stood up and formed a working group to provide support to the Santa Cruz Eleven as we came to be called.

In my own case, I had a lot to do with the encampment in San Lorenzo Park and very little to do with the 75 River Street building takeover, but this case is not about facts and evidence.

We are now down to seven defendants. Bradley Stuart Allen, Alex Darocy, Grant Wilson, and Ed Rector have all had their charges dismissed due to lack of evidence against them. Judge Burdick had also found the case against Cameron and Angel to be lacking evidence, but ADA Rebekah Young refiled against them. This hearing had been scheduled by Cameron’s attorney, Briggs, and Angel’s attorney Ruben. But Ruben wasn’t there. Nor was Briggs. Lisa McCaney, appearing on their behalf asked Young “Where is the additional evidence that you said you had to refile charges against my client?” A photograph referred to in a police report has still not been produced.

Young replied that she had been “confused” as to which motion would be resolved that day. She wasn’t the only one! Burdick had sharp words for Ms. Young.

“Its my understanding that I’ll be ruling on her motion independent of any discovery violations under discussion. Violations of due process and the procedural morass that has brought us to this point.”
This “point” being ten months into the legal process, eight months after sheriff’s came to my home and arrested me while I was cooking pancakes, and still two more months to go just to get to my preliminary hearing. And I am eager to get to that point too, where I believe I will too be able to dispense with the specious charges against me. You see, the DA has no case against me.

“I apologize. I’m not prepared to argue her motion.” What else is new in this case?

“The people here have a right to a preliminary hearing, not an additional discussion and no new facts,” Burdick told her.

“Your honor, I believed the two sole witnesses at the preliminary hearing to be sufficient.”

“She says she has additional witnesses who can identify Mr. Alcantara and Mr. Larandeau but none have been forthcoming,” McCaney charged.

“Work has been extremely sloppy and we don’t have viable opposition papers.” But then inexplicably he said “I’m going to deny the motion to dismiss.”

Burdick asked if there were any other discovery issues. Attorneys complained about an empty file on one of the disks, but Young insisted that that was how the file came from the SCPD. None of the attorneys mentioned that the videos released many months ago did not have soundtracks, but now, on videos released August 20th, the sound was back but without explanation. Of course this meant the attorneys (and defendants) must now go back and watch over 25 hours of videotape again in order to LISTEN to the dialogue of police engaged in while recording to see if there is more evidence there.

Hackett, appearing on behalf of Norse’s attorney David Beauvais said that Beauvais had repeatedly requested for procedural manuals on instructions for police on crowd control, use of tear gas, and their policy concerning 1st amendment issues.

Young answered that the SCPD “has no first amendment policy.” Burdick seemed puzzled by this. “There must be some manual or procedures for crowd control and the use of chemical agents.”

Should it be achieved by subpoena? one of the defense attorneys quipped.

Burdick ignored this and just instructed Young to “look for those.”

Then Burdick announced that he had contemplated what the appropriate sanctions against the DA’s office should be springing from his statement on August 20th. He ruled that the sanctions would be to bill the DA’s office for additional expenses that out of county attorneys only had when they were required to come to attend additional hearings due to Young’s failures to provide discovery in a timely or forthright manner. There would be no relief for defendants dragged to every hearing on threat of arrest, missing work, school, time with loved ones and incurring costs. Attorneys are paid, defendants are not.

The remaining defendants face a preliminary hearing on January 7th at 9AM in Dept 6. A readiness hearing is scheduled for January 4th also at 9AM.

October 7, 2012

Robert “Blindbear” Facer, an Amish street minister, is issued a $445 citation for “unreasonably disturbing noise” when he kept a 31-year old nearby resident from napping. Jan 6, 2010 Photo by Becky Johnson

NOTE TO READER: Can u imagine? The LAW that I was convicted under for singing a few songs in the middle of the afternoon in my unamplified singing voice in the FREE SPEECH ZONE no less!! has been found by a Judge OUTSIDE Santa Cruz County to be “unconstitutional”? Surprise. Surprise. Surprise. What’s next? Will the City seek the courts to expunge my conviction? Will they refund the $250 of community service I performed? An apology? Or will they just find another way to drive activists and musicians off of Pacific Ave.? —Becky Johnson, ed.

Judge tosses out part of Santa Cruz noise rule as too vague to meet ‘constitutional muster’

SANTA CRUZ — A federal judge has thrown out a portion of Santa Cruz’s noise ordinance and ordered the city to stop enforcing it.

U.S. District Court Judge Ronald M. Whyte ruled Friday in favor of an Alameda County man arrested in May 2010 after ignoring requests from a police officer to stop preaching loudly downtown. William Hampsmire was cited under the city’s “unreasonably disturbing noise” rule, though the District Attorney’s Office eventually declined to prosecute.

The judge found the ordinance — which bans noise that is “unreasonably disturbing or physically annoying” or “not necessary” to participate in lawful activities — is vague and “fails to pass constitutional muster.” The judge said determining what level of noise is necessary is subjective.
Hampsmire filed suit in the Northern District of California, San Jose Division, in May.

“I certainly think the city should have a noise ordinance, but the ordinance needs to be clear and measurable,” said Mike Millen, a Los Gatos attorney who brought the claim and said he has represented Hampsmire when officers elsewhere have asked him to quiet down.

The judge denied Hampsmire’s claim that his free-speech rights were violated and found no evidence that the arresting officer acted out of an objection to the man’s religious speech.
The case will go to trial unless the parties settle. Millen said he will seek payment from the city for his legal fees, which he estimated at $40,000.

City Attorney John Barisone said the ordinance has been upheld a number of times in state courts, adding, “This is really the first time a judge has had a problem with the language in our law.” He said he will work with the City Council to amend the ordinance for clarity.

The judge’s order does not affect other parts of the city’s noise ordinance, including barring loud noises from 10 p.m. to 8 a.m. Deputy Police Chief Steve Clark said the ruling also does not affect the ability of officers to cite or arrest people whom they believe are using noise to disturb the peace.

Hampsmire was preaching on the sidewalk on Pacific Avenue at Cooper Street about 6 p.m. on a Sunday when a man in an office about 70 feet away complained to police about the loud noise, saying Hampsmire had been speaking for about an hour, according to a court record. Officer Patrick Bayani responded and determined Hampsmire did not need to be so loud, even to be heard across the street, and asked him to move or reduce the noise.

The officer said Hampsmire refused and told him “You’re going to have to arrest me for preaching … for my freedom of religion,” according to the record. The man began preaching even louder after handing his belongings to a woman who was videotaping the incident.

Hampsmire was booked into jail for disturbing the peace and later released, the record said.

The city used the ordinance in 2010 to prosecute advocates for the homeless who sang in protest outside Bookshop Santa Cruz, which is owned by the family of Councilman Ryan Coonerty, a vocal critic of aggressive panhandling and other social problems downtown. The city attorney said Friday’s ruling can’t be applied to previous cases.

Police have issued 121 citations using the rule since 2011, according to city records.